This past week, President Obama signed the NDAA of 2013, with an accompanying signing statement.

While the previous Congress failed to pass the VAWA, a jobs bill for Vets (or for that matter any jobs bills); they did manage to pass the NDAA 2013. The House Armed Service Committee passed it on May 10, 2012 by a vote of 56-5. The House passed the Bill (with amendments) on May 18th, 2012 by a vote of 299-120. The Senate passed it with a vote of 98-0 on December 4th.

When a bill has constitutionally dubious or otherwise problematic provisions, the President may issue a signing statement to provide clarity and voice his objections. The statement also explains how he intends to implement the law, in a manner that would be compliant with the constitution.

A signing statement is something of a public pronouncement a president might make about a bill they are signing into law. They have been used to clarify their positions or elaborate dissent. In modern times, they are used to direct executive agencies to interpret the law according to the President’s interpretation of the Constitution. (my emphasis)

Simply put, the NDAA determines which agencies are responsible for defense, provides funds to those agencies and contains instructions on how to utilize those funds. It is renewed annually.

This year’s version of the NDAA raises some, but not all of the same issues and concerns that last year’s version did. It also gave rise to similar attacks on the President for signing the bill.

As was the case in the 2012 version of the NDAA, some suggest year’s version of the NDAA allows for the indefinite detention of American Citizens.

Let’s begin with some basic facts about the writ of habeas corpus. In short, habeas corpus is a protection against unlawful detention. Individuals can file a petition seeking a writ. If the custodian cannot provide adequate legal justification for detention, the court can order the petitioner’s release.

The only branch of government that has authority to suspend habeas corpus is Congress. When the right is suspended, Congress is the best way to restore it. In other words, the President does not have independent authority to suspend habeas corpus. At best, he can instruct agencies to address the issue in a manner consistent with his interpretation of the constitution, as he did with his 2012 signing statement.

In an effort to address the controversies last year, Senators Diane Feinstein and Mike Lee proposed an amendment that seemed to satisfy critics on both sides of the political spectrum in the Senate and passed by a vote of 67-29.

Here is the text

An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention.

While the amendment seemed to satisfy Senators, it was not without its detractors. As Mother Jones said at the time:

The way the amendment reads now, a foreign visitor like Umar Abdulmutallab—the Nigerian who tried to explode a bomb in his underpants on a flight to Detroit several years ago—could still be subject to indefinite military detention.

When asked to explain the restriction, Feinstein offered a constitutionally unsatisfying but politically realistic explanation – because that’s what will pass.

Subsequently the Feinstein/Lee Amendment was removed, reportedly at the request of Senator John McCain and replaced with the Gohmert Amendment which contained the following language in an effort to provide protections to any person inside the United States.

Nothing in the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.

The Gohmert Amendment is section 1031 in the final version of the bill, signed by the president.

The problem with this solution, according to critics, is that while it preserves habeas corpus protections, that question is already settled by the Supreme Court. Moreover, according to critics, like Amnesty International, the new provision doesn’t appear to guarantee the right to a fair trial. But on its face, the Gohmert amendment contradicts that criticism. To paraphrase, “Nothing in . . . the [NDAA] . . . shall be construed . . . to deny any Constitutional rights in a court ordained or established by or under Article III.”

Rand Paul withdrew his support for the NDAA after the Feinstein Amendment was removed because:

Saying that new language somehow ensures the right to habeas corpus – the right to be presented before a judge – is both questionable and not enough. Citizens must not only be formally charged but also receive jury trials and the other protections our Constitution guarantees. Habeas corpus is simply the beginning of due process. It is by no means the whole.

There are some problems with Paul’s objection beginning with the fact that habeas corpus is not limited to the beginning of due process. Petitioners can file for a writ of habeas corpus in several instances including failure to provide a speedy trial or hearing.

It’s also worth noting the complicated relationship between habeas corpus and the right to due process, as discussed in a law review article on this topic.

In the Hamdi case, the Supreme Court’s majority opinion suggests that respecting the right to habeas corpus opens the door to respecting other rights:

The plurality concluded that “Congress envisioned that habeas petitioners would have some opportunity to present and rebut facts and that courts in cases like this retain some ability to vary the ways in which they do so as mandated by due process.

Similarly, the Article 3 section of the NDAA says, in short, that all other rights as determined by the judiciary are also protected. All this is aside from due process rights that would be vindicated on appeal.Since the courts recognize that the right to habeas corpus inexorably leads to due process, and since the NDAA explicitly protects all other constitutional rights, all rights in criminal proceedings are protected.

The president’s signing statement does not contain any objections or comments pertaining to section 1031 because it is, in fact, consistent with the constitution.

The second criticism of the President’s decision to sign the NDAA 2013 lies in the fact that it precludes appropriation of funds to transfer people from Guantanamo Bay. Without funds to transfer people, Guantanamo Bay cannot be closed.

As was the case in 2012, the President’s signing statement contains objections to Section 1027, which precludes the possibility of transferring prisoners from Guantanamo to the United States, be it for trial or any other purpose.

Section 1027 renews the bar against using appropriated funds for fiscal year 2012 to transfer Guantanamo detainees into the United States for any purpose. I continue to oppose this provision, which substitutes the Congress’s blanket political determination for careful and fact-based determinations, made by counterterrorism and law enforcement professionals, of when and where to prosecute Guantanamo detainees.

I would like to see Gitmo closed. I’m disappointed that closure is unlikely in the near future. At the same time, the President doesn’t have a magic wand nor does he have dictatorial powers. It is impossible to close Gitmo without having some place to send the people who are detained there. Such transfers be it in the United States (or for that matter anywhere else) will cost money. Under our Constitution, Congress has the power to appropriate funds. The President does not.

It isn’t for lack of effort on the President’s part, or for that matter on the DOJ’s part. The DOJ sought to have KSM transferred to New York for trial in civilian court. To put it mildly, there was bipartisan congressional opposition to this move to the point that Congress introduced a bill to preclude KSM’s transfer to New York City for Trial.

Mohammed was to have been tried in New York City, but city officials strongly objected to the move and Congress refused to appropriate funds to house Guantanamo inmates on mainland United States and to provide funds for a trial of extraordinary expense.

For the very same reasons, the President cannot close Gitmo without Congressional support.

We see the same problem with section 1025, which limits the military’s authority to transfer third country nationals held in Parwan, Afghanistan.

Section 1025 threatens to upend that tradition, and could interfere with my ability as Commander in Chief to make time-sensitive determinations about the appropriate disposition of detainees in an active area of hostilities. Under certain circumstances, the section could violate constitutional separation of powers principles. If section 1025 operates in a manner that violates constitutional separation of powers principles, my Administration will implement it to avoid the constitutional conflict. (my emphasis)

The relationship between Congress’s unwillingness to appropriate funds and the interplay with presidential powers under the constitution is further reflected in other sections of the bill. Under the same logic that applies to closing Guantanamo, the lack of funding appropriations by Congress also restricts an ability to transfer prisoners to third countries.

If people can’t be transferred to the United States without Congressional support and they can’t be transferred to third countries without Congressional support; the President can’t close Guntanamo Bay without Congressional support.

In short, there are many reasons to find the NDAA 2013 both objectionable and inconsistent with the constitution. While the NDAA 2012 raised legitimate concerns about the indefinite detention of Americans, the same cannot be said of NDAA 2013. As noted above, there were two proposals to address this problem. Notwithstanding the political realities, critics of the Feinstein/Lee amendment rightly pointed to the fact that while the amendment protected against unlawful detention, that protection was under inclusive in a manner that is inconsistent with the constitution. The Gohmert amendment rectified that problem.

It’s very easy to criticize the President on the question of Guantanamo Bay. The fact remains that he cannot close Guantanamo Bay without support from Congress; that fact would not have changed had he opted to exercise his veto.

Vetoing the NDAA would have created several other problems, including the absence of funding for national defense. Even if Obama had exercised his veto, Congress may very well have overridden it, meaning the NDAA would have become law as is. Perhaps Congress would not have overridden the veto and that would mean starting over. But there is no assurance that another bill would have been less objectionable on the same issues.

Sometimes presidents have to be grown-ups and sign bills they don’t like, simply because the possibility for improvement is limited by the children in Congress.

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